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Luster v. Oddo

United States District Court, M.D. Georgia, Macon Division

October 3, 2017

DAVID ANTOINE LUSTER, Petitioner,
v.
L J ODDO, Respondent.

          ORDER

          C. ASHLEY ROYAL, SENIOR JUDGE, UNITED STATES DISTRICT COURT

         Petitioner David Antoine Luster has filed an application to appeal in forma pauperis. Motion for Leave to Appeal In Forma Pauperis, ECF No. 12. After reviewing the record, the Court enters the following Order.

         On August 31, 2017, this Court dismissed Petitioner's petition for writ of habeas corpus because Petitioner failed to obtain leave from the Eleventh Circuit to file a second or successive habeas petition. Order Dismissing Pet. for Writ of Habeas Corpus, ECF No. 9. Judgment was entered on September 1, 2017. Judgment, ECF No. 10. Petitioner seeks to appeal the judgment. Notice of Appeal., ECF No. 11.

         Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and Fed. R. App. P. 24. 28 U.S.C. § 1915 provides

(a)(1) [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefore, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.
. . .
(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

         Similarly, Fed. R. App. P. 24(a) provides:

(1) [A] party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that:
(A) shows . . . the party's inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
(2) If the district court denies the motion, it must state its reasons in writing.

         Thus, the Court must make two determinations when faced with an application to proceed in forma pauperis. First, it must determine whether the petitioner is financially able to pay the filing fee required for an appeal. Petitioner's application and certified trust fund account statement in this case indicate that he is unable to pay ...


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